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Published on Tuesday, November 14, 2017

Will Congress Pass a Federal Sick Leave Law?

For many employers with employees across state lines, they are dealing with a myriad of local and state laws that impact the workplace.  One of the most vexing issues for employers is the growth of paid sick leave laws across multiple jurisdictions.   There are at least 41 State, County and City jurisdictions that have paid sick leave laws.  Federal contractors that fall under the Service Contract Act are also covered.  A federal law may be on its way pre-empting local and state laws.

A typical example of paid sick leave is like that imposed on federal contractors.  The regulations require that workers in assignments related to federal contracts receive one hour of paid sick leave for every 30 hours they work, for up to 56 hours of leave a year. Workers will be able to use the days to receive medical attention, care for a relative, or deal with complications arising from domestic violence or sexual assault.  Another example is the City of Chicago.  Employees will accrue one hour of paid sick time for every 40 hours worked, with a limit of five sick days in a 12-month period.

The administration of these paid sick leave laws can be very complex.  For example, federal contractors must allow employees to carry over 56 hours of sick leave year to year, although they can limit the use of paid sick leave to 56 hours.  If a federal contractor has PTO, it can “frontload” paid sick leave at the beginning of each accrual year but can still limit the carryover from year to year to 56 hours.   However, the amount of paid sick leave may end up being greater than 56 hours.  Under the City of Chicago’s requirements, employers generally must permit employees to carry over a maximum of 20 hours of accrued but unused sick leave each year. If the employer is subject to the Family Medical Leave Act (FMLA), employers must permit eligible employees to carry over an additional 40 hours of accrued but unused sick leave each year, although they can require that these 40 hours be used exclusively for FMLA purposes.

Under the city of Seattle’s paid sick leave law, employees can use up to 72 hours of leave in a year if their employer provides separate sick days, but if the employer uses a PTO policy, employees can use up to 108 hours of leave.  On the other hand, the State of Arizona requires a separate sick leave bank if employers have a PTO policy. 

Most of these laws do not require payout of unused leave when an employer terminates, but California might if the sick leave is embedded within a PTO bank.

This can become even more confusing because of the definition of an employee.  For example, only employees who support a federal contract will have access to paid sick leave under the federal law.  Projects that employees work on must be tracked to the hours worked since employees may work on a variety of projects, both federal and nonfederal. 

Definitions of usage may vary greatly.  FMLA has specific requirements to be applicable.  The federal paid sick leave is broader than FMLA.  Adult children are covered, whereas under FMLA only minor children or adult children ‘‘incapable of self-care because of a mental or physical disability’’ are covered.   Moreover, the federal paid sick leave is broader than FMLA.  The DOL listed, among other things, a common cold, ear infection, upset stomach, ulcer, flu, headache, migraine, sprained ankle, broken arm, or depressive episode.

Congress has taken notice of the issue of conflicting paid sick leave laws.  A bill has been introduced by  Representative Mimi Walters, a Republican from California.  The “Workflex in the 21st Century Act” (HR 4219) would give employers the option of providing a certain number of paid leave hours (to be determined based on your organization’s size and the employee’s length of service) and a workplace flexibility (workflex) option. In exchange for providing these two benefits, the employer would be relieved of the obligation to follow any paid leave proposals at the state or local level.

Under the proposed law, employees with five or more or less than five years of service would be entitled to separate paid sick leave banks, depending on the size of the employer.  The entitlement would start only after the 90th day of service, and part-time workers would get a pro-rata allocation.  The paid sick leave bank can be allocated at one time or accrued over time. 

To be eligible for this law, employers would have to couple the paid sick leave with flexible workplace policies such as a compressed work schedule (allowing employees to increase their daily hours to qualify for a four-day workweek), a biweekly work program (permitting employees to work a total of 80 hours over a two-week period), a telecommuting program, a job-sharing program, flexible scheduling, or a predictable schedule. Only those employees who have worked for at least a year, and who have worked at least 1,000 hours in the past 12 months would be eligible.

The bill would amend ERISA so none of the requirements would violate that law. 

Although the White House has not signaled support yet, the Society for Human Resource Management (SHRM), the U.S. Chamber of Commerce, and the H.R. Policy Association are supporting it.  ASE will track this bill as it makes its way through congress. 


Source:  Fisher Phillips 11/3/17, Littler 10/3/17

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